If the law were so
foolish as to aim at merely formal consistency, it might indeed
be said that there was as absolute a repugnancy between the
different terms of this contract as in the ease of an agreement
to sell certain barrels of mackerel, where the barrels turned out
to contain salt. If this view were adopted, there would not be a
contract subject to a condition, there would be no contract at
all. But in truth there is a contract, and there is not even a
condition. As has been said already, it is not every repugnancy
that makes a contract void, and it is not every failure in the
terms of the counter undertaking that makes it voidable. Here it
plainly appears that the buyer knows exactly what he is going to
get, and therefore that the mistake of color has no bearing on
the bargain. /1/
If, on the other hand, a contract contained a representation
which was fraudulent, and which misled the party to whom it was
made, the contract would be voidable on the same principles as if
the representation had been made beforehand. But words of
description in a contract are very frequently held to amount to
what is sometimes called a warranty, irrespective of fraud.
Whether they do so or not is a question to be determined by the
court on grounds of common sense, looking to the meaning of the
words, the importance in the transaction of the facts [329] which
the words convey, and so forth.
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